The International Criminal Court came into being on July 1, 2002. To its supporters, the new court represents nothing less than a milestone in the evolution of global justice. The court’s opponents also portray it in highly dramatic terms. The Bush administration says it is so concerned that the court may launch politically motivated prosecutions of U.S. citizens that it has started a worldwide drive to secure immunity agreements from other countries, withholding military aid from many of those who refuse. Yet in the immediate future, the court’s impact may be much less than its supporters and critics believe. The setting up of the International Criminal Court presents the odd spectacle of an event of enormous symbolic resonance, whose practical effects are likely to remain fairly modest, at least for some time to come.

The television set in a bar in Kraljevo, Serbia shows live coverage of ex-President Slobodan Milosevic defending himself at the Yugoslav war crimes tribunal in The Hague. The tribunal was an important precursor for the International Criminal Court. © George Georgiou | Panos

The idea of a permanent standing court that could hold individuals accountable for the worst international crimes has been under discussion for a long time. As Marlies Glasius discusses in this issue, such a body was first proposed in the late 19th century, at the same time as the earliest modern codification of the laws of war. The idea was revived in the aftermath of World War II, but fell victim to the institutional paralysis of the Cold War. Finally, in the 1990s, it was revived again through the initiative of the Caribbean country of Trinidad & Tobago, which thought it could be used against drug traffickers. Instead, influenced by the precedent of the tribunals for the former Yugoslavia and Rwanda, it evolved into the institution that now exists: a court with jurisdiction over war crimes, crimes against humanity and genocide.

The court is intended to deter or punish the crimes of the future; it cannot prosecute people for crimes committed before it came into existence. But its ability to hold people accountable for these crimes is only as great as the court’s jurisdiction – and this is limited in one crucial way. It was agreed at an early stage that the court would be a treaty-based organization – in other words, that states would have to become party to it through ratification of its statute (the Rome Statute, as it is formally known). Countries that do not sign up to the court are not obliged to cooperate with it, and most crimes that take place within these countries will be outside the court’s power to reach. As of November 2003, ninety-two countries have become party to the ICC – but those that have not include Algeria, Burundi, China, Egypt, India, Iran, Iraq, Israel, Liberia, Libya, North Korea, Pakistan, Russia, Rwanda, Sudan, Syria, the United States, Uzbekistan and Zimbabwe¹. Clearly, we remain a long way from a universal court that can sit in judgement over all the atrocities of the world.

Limitations on Sovereignty

Nevertheless the court does have powers that go beyond what the most sovereignty-conscious states (such as the United States) had hoped to restrict it to. For instance, the court has jurisdiction not only over crimes committed by people from states that are party to it, but also over crimes committed on the territory of a state party. In this way, people from countries that have not joined the court might nevertheless be subject to trial before it, if they are accused of committing war crimes in a country that is a member of the court. So even though the United States has not ratified the statute, an American could be indicted for crimes committed in, say, Afghanistan, or Bosnia.

Another significant power that the court gained during the negotiating process (it had not been in the first draft statute prepared by the United Nations’ International Law Commission) was that the prosecutor was given the right to initiate cases under his own authority. It was always envisaged that states that were party to the court, or the United Nations Security Council, could refer cases to it – but giving the prosecutor the power to launch his own cases removes the court from the realm of international power politics, and makes into something more like the nucleus of a new international legal system. It is easier to think that an independent prosecutor might pursue a case against a citizen of a powerful country than to imagine the government of another country doing it, at the risk of economic or diplomatic (even perhaps military) reprisal.

Judges at the initial hearing of eights Hutus accused of genocide against the Tutsis, at the Rwanda war crimes tribunal in Arusha, Tanzania. The Rwanda tribunal is one of a series of courts established in recent years as part of a gathering movement for international justice. © Paul Lowe | Panos

A final question that came to the fore during the negotiations over the court’s statute concerned its relationship to the United Nations Security Council. The United States proposed that the Security Council should have to approve any prosecution before it was allowed to proceed. This would have given any of the Council’s five permanent members (including the United States, Russia, and China) the ability to stop a prosecution in its track – effectively ensuring that no one from these countries need ever face trial before the court. The diplomatic conference that was responsible for finalizing the statute rejected this proposal, and came up with a compromise solution: the Security Council would have the right to block any prosecution for a renewable period of one year, if it determined that pursuing it would pose a threat to international peace and security. This formula meant that the Security Council retained the ultimate authority over its peace and security remit, but ensured that no single country could unilaterally block the court’s actions. To suspend an investigation or prosecution would now take a positive vote of a majority of Council members.

In all these ways, as Antonio Cassese details in his essay in this magazine, the International Criminal Court represents another step toward a system of international law that reaches beyond state sovereignty. It proclaims the interest of humanity in the principle that those who commit the most serious international crimes should be held accountable. Indeed, as Marlies Glasius shows in her article, a big factor in determining that the court became as powerful as it has was the emergence of a number of international non-governmental groups that tracked the negotiations, mobilized public opinion and lobbied for the inclusion of measures they thought significant. These groups – which Glasius collectively describes as “global civil society” – can be seen both as a representation of the kind of international society that the court appears to speak to, and at the same time a powerful influence in pushing the court further in an internationalist direction.

Crimes Beyond the Court’s Reach

Yet the International Criminal Court is far from an all-powerful global giant, as Cassese points out. First of all, the vast majority of the world’s worst crimes are committed by governments against their own citizens, as with the Rwandan genocide, and the court may be powerless to touch these. Citizens of countries that have not ratified the court’s statute cannot be prosecuted for actions they commit within their own territory, unless the Security Council votes to refer the situation to the court. Inevitably, the countries that have joined the court tend mostly to be those countries that themselves honour and observe the rule of law – it would be glib to describe the institution as a court of and for the virtuous, but there is an element of truth in the description.

It is therefore likely that many of the court’s early cases will come from countries whose governments are sympathetic to the ideals of international law – but do not have full control over their own territory: countries like the Democratic Republic of Congo, Afghanistan, or Colombia. In these cases, governments may have joined the ICC as part of a broader effort to restore the domestic rule of law; almost as a declaration of the values that they hope will come to be associated with their own administrations. (The situation in Colombia, though, has been complicated by a change of regime and by continuing arguments about the legitimate scope of amnesty agreements, as discussed below.)

In any case, even where the court is able to launch a case against a suspect, it does not itself have the power to apprehend him. It is dependent on the support of national governments to hand over suspects in their own custody, or use their police or military forces to arrest them. As the history of the war crimes tribunal for the former Yugoslavia has shown, this cannot always be taken for granted. Two of the most wanted suspects who face indictments before the Yugoslav tribunal, Radovan Karadzic and General Ratko Mladic, have remained at large for eight years despite the presence of tens of thousands of NATO troops on the territory where at least one of them is located.

A Court of Last Resort

Another important feature of the International Criminal Court is that it does not have precedence over national courts (as the Yugoslav and Rwandan tribunals do) but can only pursue cases when the countries involved fail to do so. This principle – known by the technical name of “complementarity” – makes the ICC effectively into a court of last resort. The statute says that the court may only begin a prosecution where a state that has jurisdiction over the case (which would normally mean the suspect’s home country) shows itself “unwilling or unable genuinely to carry out the investigation or prosecution.” In other words, any country with a credible and functioning legal system will be given the chance to show that it is looking into the allegations itself, and under those circumstances the International Criminal Court will not pursue the case.

It is of course the ICC itself that will make the judgement about whether the country concerned is genuinely pursuing a particular investigation. But the statute sets a high threshold for the court to overrule a national decision in this area: it says (among other provisions) that the country’s handling of the case must be undertaken with “the purpose of shielding the person concerned from criminal responsibility.” In other words, the court is not supposed to second-guess the verdict of a genuine national investigation, but only to seize on those cases where national authorities are blatantly violating the requirements of justice.

The complementarity provision also seems to allow some leeway for states to decide not to prosecute a particular individual or group of people in the interests of national reconciliation – as South Africa did for instance with its Truth and Reconciliation Commission. The President of the ICC, Philippe Kirsch, said in a recent address to the Royal Institute of International Affairs in London that “some limited amnesties may be compatible” with the obligations genuinely to investigate or prosecute under the statute. At the same time, it seems likely that the court will not honour sweeping amnesty provisions that are put in place by criminal regimes to protect their own officials. The precise way this balance is struck will emerge through the court’s actual decisions and is likely to be one of the most closely watched aspects of its work.

This will be particularly the case with regard to Latin America, as Margaret Popkin shows in her essay. No other area of the world has had such an emotive public debate about the relationship between reconciliation and justice in the aftermath of massive crimes committed by officers of the state. As Popkin shows, many Latin American countries have not been able to hold people accountable for acts of torture, forced disappearances and executions carried out by public officials in recent times – yet the advent of the ICC may help them move closer to international standards in the future. The most difficult questions, she shows, are likely to arise in the case of Colombia, where a violent armed conflict is still taking place, and where the new government has held out the option of amnesties as an incentive for individuals and groups to stop fighting.

Will the Court Be Political?

The International Criminal Court represents a carefully drawn compromise between two ideas: that countries should be first of all responsible for administering the rule of law within their territory, and that holding people accountable for the most serious crimes under international law is ultimately an international, as well as domestic, concern. There are numerous safeguards to prevent the court from over-reaching, and to limit the possibility that the prosecutor might pursue cases for political rather than legal motives. First of all, before the prosecutor can launch an investigation, he must persuade a three-judge pre-trial panel that there is a plausible case to answer. Then he must notify the country that would normally have jurisdiction over the case that he is looking into it, and give them the chance to investigate themselves. If the prosecutor believes that the country is not genuinely pursuing the matter, he must go back to the pre-trial chamber and get them to endorse this judgement – and the country concerned can then appeal this decision to the ICC’s Appeals Chamber.

Of course the protection offered by these provisions is dependent on the calibre of the individuals who are chosen to fill the positions of prosecutor and judges. But the selection is made by the countries that are parties to the court – and they are likely by definition to share a commitment to the idea of the rule of law. The first group of judges and the Chief Prosecutor have already been named, and appear extremely credible. For instance, the senior judge (the court’s president) is Philippe Kirsch, a highly respected Canadian international lawyer who was extensively involved in the preparatory work for the court. The Chief Prosecutor is Luis Moreno Ocampo, an Argentinian lawyer who was involved in high-level human rights cases against his country’s military rulers, and was more recently a professor at Harvard Law School.

Nevertheless the United States believes that the International Criminal Court poses a threat to American interests. The Clinton administration delayed for a year and a half before signing the court’s state – and even then made no effort to submit it to the Senate for ratification. The Bush administration went as far as formally notifying the United Nations that it had no intention of seeking to ratify the treaty, and that therefore it no longer felt bound by the requirement not to take actions contrary to the treaty’s spirit. It immediately put this principle into practice by launching a world-wide campaign to sign bilateral agreements with as many countries as possible, requiring them not to hand over any U.S. citizens that the court was seeking, but instead to return them to the United States. By mid-November, 66 countries had signed such agreements, including many of the main recipients of military aid from the United States, who stood to lose this aid if they refused to sign.

These so-called “bilateral immunity agreements” (sometimes called “Article 98 agreements” after the relevant clause in the court’s statute) may not offer as much protection as the United States seems to believe. It is true that the Rome Statute does allow scope for immunity agreements – but the text makes clear that this allowance is limited to agreements whereby “the consent of a sending State is required to surrender a person of that State to the Court.” Translated into ordinary language, this seems to mean that the court will only recognize agreements that cover people who have been sent abroad in an official capacity – serving military personnel or diplomats, for instance, but not retired government officials or military officers travelling privately.

The agreements that the United States has been signing, by contrast, are specifically designed to cover all American citizens. It is probable that, in the case of a private citizen, the ICC might decide that its statute did not require it to defer to this kind of agreement, and would issue a request for that person to be delivered to the court. Under international law, the country that found itself in the middle of this tug-of-war would have to give precedence to its obligations to the International Criminal Court, above a bilateral deal with the United States, and hand over the person concerned.

Still, it is hard to imagine such a chain of events actually coming to pass. The bigger question is whether U.S. objections to the court have any basis in reality – and whether there is any prospect that the U.S. could be persuaded to join at some point. Some of the leading Democratic presidential candidates have criticised the Bush administration for its hardline opposition to the court. For instance, General Wesley Clark has said, “We've got to find a way to work with this court and bring it around and make whatever modifications need to be made to it.” Governor Howard Dean argued earlier this year that the United States should “work to rewrite” the Rome Treaty rather than “walk away” from it. Senator John Kerry has said, “I support U.S. participation in the International Criminal Court, but also believe that U.S. officials, including soldiers, should be provided some protection from politically motivated prosecutions.” Still, it is notable that, of the candidates, only the outsider Rep. Dennis Kucinich has stated unequivocally that the United States should become a party to the International Criminal Court as it now stands.²

In his essay, Paul Kahn examines the reasons why there is such resistance to the court in the United States – arguing that it cannot be understood simply on the basis of the current administration’s arguments. He proposes that U.S. antagonism to the ICC is prompted not so much by any practical threat it presents as by what it stands for. The court represents the idea that the rule of law is grounded in universal reason, not the values of a particular national community. But in the United States, the rule of law is seen as an expression of popular sovereignty, as embodied in the Constitution. The implication of Kahn’s argument is that U.S. opposition is unlikely to be swayed by practical arguments alone, but will require a broader debate about the meaning of the rule of law in an international context.

How the Court Will Define Itself

U.S. policy on the ICC may also be influenced by the way the court handles itself during its first years of operation. Philippe Kirsch, the court’s president, told the Royal Institute of International Affairs that his priority was to establish the court’s credibility in practice, by demonstrating both “the fairness and efficiency of its proceedings.” He also said that the court’s openness to victims was a vitally important part of its work – and suggested that it would consider sitting in the country where crimes had occurred, if possible, to bring justice closer to those most directly affected. (This possibility is recognized in Article 3 of the statute.)

Meanwhile the court’s Chief Prosecutor, Luis Moreno Ocampo, who took up his post in June, has also given an indication of how he will approach his job, by announcing that he is looking at the Democratic Republic of Congo as the possible subject of his first official investigation. In this magazine, Stéphanie Maupas provides a detailed analysis of the Chief Prosecutor’s opening months. It will be Ocampo’s responsibility to decide what kind of cases to bring to the court, and Maupas shows how he intends to use his office to go after the people he sees as most responsible for the serious crimes that fall within the court’s jurisdiction: both political and military decision-makers, and those who subsidise their crimes by giving financial support or engaging in illegal trade.

In the longer term, another issue that the court will have to confront is its treatment of aggression. In the Nuremberg trials, aggression was included among the criminal charges against the Nazi elite – indeed in the eyes of the U.S. administration, it was the most important part of the trials. Since then, aggression has not been prominent in the development of international criminal law: it was not included among the list of crimes of the tribunals for the former Yugoslavia and Rwanda. Under the Rome Statute, the ICC does have jurisdiction over aggression – but with the proviso that it will only become operative after an amendment is passed to the statute defining aggression and setting the conditions under which the court can prosecute for it. (Under the statute, amendments can only be adopted after the court has been in existence for seven years.) In the initial draft statute for the court, aggression could only be prosecuted after a finding by the U.N. Security Council – a formula that may eventually be adopted for the court itself.

It is thus likely to be a long time before we can come to any considered judgement about the ICC. Much depends on the development of the court itself, the evolving attitude of the United States, and the changing status of international criminal law in world politics. The essays in this collection are predominantly open-ended rather than conclusive. Our aim is to describe a moment whose full significance will not be known for many years. As always, we welcome comments and reactions from our readers – please send responses to the editor at anthony@crimesofwar.org.

1 A full list of states parties can be found on the AMICC website

2 Information about the positions of the Democratic candidates is available on the AMICC website and on the California Peace Action website.

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